1.4
1.5
1.6
DECLINING STAGE OF AN ORGANISATION
1.12
1.13
1.14
1.15 Promoter/director can be Resolution applicant if Corporate Debtors is MSME
1.16 Special provisions under GST relating to companies under Insolvency Process
1.17 Institution and/or continuation of proceedings under FTDR against companies against whom proceedings have been instituted under Insolvency Code
1.18 Role of Government and its agencies in CIRP and Liquidation Process
INSOLVENCY PROFESSIONAL
3.5
3.10 Withdrawal of application after admission with approval of 90% voting by CoC
CONDUCTING CORPORATE INSOLVENCY RESOLUTION PROCESS
4.1
4.2
4.3 Public announcement of corporate insolvency resolution process
4.4 Appointment and tenure of interim resolution professional
4.5 Submission of proof of claims to interim resolution
4.6 Committee of Creditors (CoC)
4.7 Appointment of resolution professional in first meeting of CoC
4.8 Powers and functions of Committee of Creditors (CoC)
4.9
4.10
4.11
4.12
4.13
RESOLUTION PLAN BY RESOLUTION APPLICANT
5.1
5.2
5.3
5.4
5.5
5.6
5.7 Submission of plan to Adjudicating Authority
5.8 Assistance of district administration in implementing the resolution plan 182
5.9 Effect if resolution plan rejected by NCLT 182
5.10 Appeal against order of adjudicating authority 183
5.11 Immunity from prosecution of corporate debtor after approval of CIRP 183
5.12 No action against property of corporate debtor in respect of offence committed prior to CIRP if there was change in management or sale of assets 184
5.13 Corporate debtor and new management to provide assistance to investigating agency 186
5.14 Preservation of records of CIRP by RP 186
FAST TRACK CORPORATE INSOLVENCY RESOLUTION PROCESS
6.1 Speedy process for insolvency resolution 187
6.2 Application for fast track process 187
6.3 Procedure for fast track process 188
6A
PRE-PACKAGED INSOLVENCY RESOLUTION PROCESS (PPIRP)
6A.1 Background of the PPIRP (Pre-Packaged Insolvency Resolution Process) 189
6A.2 Basic design of Pre-Packaged Insolvency Resolution Process (PPIRP) 193
6A.3 Application of provisions of CIRP to PPIRP 197
6A.4 Priority to PPIRP over CIRP, except where CIRP proceedings have already commenced 199
6A.5 Eligibility and conditions to apply for PPIRP 201
6A.6 Initiation of PPIRP by Corporate Debtor 203
6A.7 Duties and authorities of Insolvency Professional proposed to be appointed as Resolution Professional 205
6A.8 Procedure prior to application to AA for approval to initiate PPIRP 207
6A.9 Filing of application by Corporate Applicant with Adjudicating Authority 209
6A.10 Admission or rejection of application by Adjudicating Authority (NCLT) 211
6A.11 Moratorium during PPIRP period 212
6B
PROCEDURE FOR PPIRP AFTER ADMISSION OF APPLICATION
6B.1 Formal process of PPIRP starts only after admission of application 213
6B.2 Conduct of PPIRP by Resolution Professional 214
6B.3 Powers of Resolution Professional during initial stages of PPIRP 216
6B.4 Filing of Application for avoidance of transactions 217
6B.5 Prior approval of Committee of Creditors (CoC) for certain actions by corporate debtor 219
6B.6 Information to be supplied by financial institutions to Resolution Professional 221
6B.7 Submission of List of claims and its updation in PPIRP 221
6B.8 Conduct of business of Corporate Debtor during PPIRP 224
6B.9 Constitution and functioning of Committee of Creditors in PPIRP 225
6B.10 Meeting of Committee of Creditors in PPIRP 228
6C
SUBMISSION AND APPROVAL OF RESOLUTION PLAN UNDER PPIRP
6C.1 What is a resolution plan 235
6C.2 Submission of Base Resolution Plan by RP to CoC 239
6C.3 Invitation to Resolution Applicants if CoC does not approve base resolution plan or operational creditors cannot be satisfied 241
6C.4 Furnishing of information to Resolution Applicants 243
6C.5 Submission of resolution plan by resolution applicant and its evaluation 245
6C.6 Submission of Resolution Plans by Resolution Professional to CoC 246
6C.7 Submission of Resolution Plan approved by CoC for approval by AA
6C.8 Termination of PPIRP which ultimately results in liquidation of corporate debtor 251
6C.9 CoC may terminate PPIRP if corporate debtor eligible for CIRP 253
LIQUIDATION OF CORPORATE PERSON
7.1 Initiation of Liquidation
7.2 Appointment of Liquidator and his fees
7.3 Powers and duties of Liquidator
7.4 Liquidation Estate
7.5 Realization of security interest by
7.6 Distribution of
7.7 Liabilities of contributory in liquidation
ADMISSION AND PROOF OF CLAIMS BY LIQUIDATOR
8.1 Liquidator has powers to access information
8.2 Ascertaining claims against corporate debtor
8.3 Avoidance of preferential transactions by liquidator
8.4 Avoidance of undervalued transactions
8.5 Action if corporate debtor had defraud creditors
8.6 Protection to corporate debtor against extortionate credit transactions
8.7 Position of secured creditor in liquidation proceedings
REALISATION AND DISTRIBUTION OF ASSETS BY LIQUIDATOR
9.1 Realisation of assets by Liquidator
9.2 Mode of sale
9.3 All money to be paid into bank account except petty cash
9.4 Distribution of assets
9.5 Distribution of cash to stakeholders
9.6 Completion of liquidation within one year
9.7 Final report by Liquidator prior to dissolution
9.8 Unclaimed proceeds of liquidation or undistributed assets to be transferred to Corporate Liquidation Account
9.9 Dissolution of corporate debtor
PAYMENT OF DUES TO STAKEHOLDERS AFTER LIQUIDATION OR DURING FORMULATION OF RESOLUTION PLAN
10.1 Insolvency Code is complete code in respect of distribution of assets
10.2 Money held in trust has priority over all dues
10.3 Statutory dues under other laws
10.4 Workmen’s portion of Workmen’s dues previous for two years have overriding priority
10.5 Provisions relating to secured creditors
10.6 Priority of tax dues in winding up over secured creditors
10.7 Preferential Payments under Companies Act
10.8 Distribution of surplus amount members
10.9 Tax liability under Income Tax in respect of distribution of assets to equity shareholders
VOLUNTARY LIQUIDATION OF COMPANIES
11.1 Voluntary liquidation by corporates with no default
Procedure for Voluntary Liquidation
Notification to Registrar after resolution
Application to NCLT after assets wound up
11.5 Procedure for voluntary liquidation
11.6 Claim by various creditors Proof of claim
11.7 Realisation of Assets
11.8 Completion of liquidation
11.9 Cases where voluntary liquidation was allowed
ADJUDICATION AND APPEALS FOR CORPORATE PERSONS
12.1 Adjudicating Authority in relation to insolvency resolution and liquidation for corporate persons
12.2 Appeals and Appellate Authority
12.3 Appeal to Supreme Court on question of law
12.4 Civil Court not to have jurisdiction where NCLT or IBBI has jurisdiction
12.5 Expeditious disposal of applications
12.6 Penalty for fraudulent or malicious initiation of proceedings
12.7 Penalty of carrying on business fraudulently to defraud traders
CROSS BORDER INSOLVENCY AND BANKRUPTCY
13.1 Enabling provisions for cross border transactions
13.2 Agreements with foreign countries
13.3 Letter of request to a country outside India in respect of assets
OFFENCES AND PENALTIES IN RELATION TO CORPORATE INSOLVENCY
14.1 Punishments for offences
14.2 Punishment for concealment of property
14.3 Punishment for transactions defrauding creditors
14.4 Punishment for misconduct in course of corporate insolvency resolution process
14.5 Offences by insolvency professional
14.6 Punishment for falsification of books of corporate debtor
14.7 Punishment for wilful and material omissions from statements relating to affairs of corporate debtor 323
14.8 Punishment for false representations to creditors 323
14.9 Punishment for contravention of moratorium or the resolution plan 323
14.10 Punishment for false information furnished in application 324
14.11 Punishment for non-disclosure of (a) dispute, or (b) payment of debt by operational creditor 324
14.12 Punishment for providing false information in application made by corporate debtor 324
14.13 Residual punishment of fine for violation of provisions of Insolvency Code 325
14.14 NCLT can ask Government to investigate and Government can file complaint before Special Court 325
14.15 Punishment for providing false information in Pre-Packaged Insolvency Resolution Process 325
14.16 Punishment in case of contravention of provisions of Chapter III-A (Pre-Packaged Insolvency Resolution Process) 326
14.17 When the application shall be deemed to be false in material particulars 326
15
BANKRUPTCY FOR INDIVIDUALS AND PARTNERSHIP FIRMS
15.1 Background
15.2 Adjudicating
15.3 Civil Court not to have jurisdiction
15.4 Appeal against order of DRT
15.5 Appeal to Supreme Court
16
FRESH START PROCESS
16.1 Introduction
16.2 Interim moratorium
16.3 Procedure after receipt of application
16.4 Objections by creditor
16.5 Discharge order
17.5
17.6
17.7
17.8
INSOLVENCY RESOLUTION OF
BANKRUPTCY ORDER FOR
19.4
19.6
19.7
BANKRUPTCY TRUSTEE
COMPROMISES, ARRANGEMENTS
21.4 Merger and Amalgamation
21.5 Procedure to be followed
21.6 Simplified fast track procedure in case of small companies or holding/subsidiary companies
21.7 Cross border mergers
21.8 Takeover of another company by purchasing 100% of shares 389
21.9 Compromise or arrangement may include takeover 390
21.10 Compulsory offer to purchase of minority shareholding if acquirer already holds 90% or more equity shares 391
21.11 Power to Central Government to order compulsory amalgamation 391
22
REGISTERED VALUERS
22.1 Background 392
22.2 Qualifications and eligibility and registration as valuer 395
22.3 Methods of valuation
22.4 Liability of valuer is as ‘expert’
23
REMOVAL OF NAME OF COMPANIES FROM REGISTER OF MEMBERS
23.1 Removal of name - Short cut to winding up
23.2 Striking off name of a company
23.3 Company may itself request for removal of its name from register of companies 402
23.4 NCLT can issue winding up order even if name of struck off the register 404
23.5 Restrictions in applying for removal of name 405
23.6 Effect if company is dissolved by removing name from register 405
23.7 Effect if company carries on business even after name is struck off the register 406
23.8 Fraudulent application for removal of name 406
23.9 Appeal before NCLT against removal of name of company 406
23.10
23.11
NCLT AND NCLAT
24.1
24.2
24.3
24.4
24.5
24.6
RECOVERY OF DEBTS AND BANKRUPTCY ACT, 1993
25.1
25.2
25.3
25.4
25.5
25.6
25.7
25.8
SARFAESI ACT
26.1
26.2
26.3
26.4
26.5
26.6 Procedure for sale of asset 473
26.7 Takeover of management of defaulting borrower 484
26.8 Application, Appeals and Penalty 486
26.9 Securitisation 493
26.10 Asset Reconstruction Companies 495
26.11 Acquiring financial assets by ARC from Bank/FI 500
26.12 Central Registry under SARFAESI Act 504
26.13 Asset Reconstruction 509
RBI DIRECTIONS ON RESOLUTION OF STRESSED ASSETS
27.1 Background 511
27.2 RBI Directions on Prudential Framework for Resolution of Stressed Assets 512
27.3 Framework for Resolution of Stressed Assets as directed by RBI 512
27.4 Provisioning in case of delayed Implementation of Resolution Plan 514
27.5 Prudential Norms 515
27.6 Supervisory Review by RBI 515
27.7 Disclosures by lenders in financial statements 515
27.8 Exceptions to the directions for stressed assets 515
Insolvency Resolution of corporate persons
Part II of Insolvency Code, 2016 [sections 4 to 77] deal with Insolvency Resolution and liquidation of corporate persons.
This part is divided into seven chapters. Each chapter dealing with different issues relating to Insolvency Resolution and liquidation of corporate persons.
The Insolvency Code initially made provisions of corporate insolvency resolution process (CIRP). Now, w.e.f. 4-4-2021 separate provisions have been made for pre-packaged insolvency resolution process (PPIRP) of corporate debtor under Chapter III-A of the Insolvency Code, specifically for MSME sector. The provisions relating to PPIRP are discussed separately.
Corporate insolvency resolution process (CIRP) can be commenced when a corporate debtor commits a default - section 4(1) of Insolvency Code, 2016.
The default should be minimum Rs one crore - proviso to section 4(1) of Insolvency Code, 2016 [Limit of Rs one lakh increased to Rs one crore vide Notification No. S.O. 1205(E) dated 24-3-2020] - noted and followed in Pankaj Aggrawal v. UOI (2020) 160 SCL 624 = 117 taxmann.com 494 (Del HC).
CIRP cannot be initiated if amount involved is less than Rs one lakh (now Rs one crore) - Deltas Pharma v. Life Essential Personalcare (2018) 148 SCL 234 = 94 taxmann.com 222 (NCLT).
When amount involved exceeds Rs one lakh (now Rs one crore), Adjudicating Authority is not required to determine exact amount defaulted. Discrepancy in calculation can be settled by CoC - Bank of Baroda v. Barnala Steel Industries P Ltd. (2018) 148 SCL 246 = 94 taxmann.com 202 (NCLT) * Standard Chartered Bank v. Woolways India Ltd. [2018] 94 taxmann.com 381 (NCLT).
Exact amount of amount due is not necessary to be determined at admission stageDispute regarding quantum of admitted liability is immaterial at admission stage of CIRP application, once liability is accepted - Apya Capital Services v. Guardian Homes [2021] 129 taxmann.com 393 (NCLAT) * Suzlon Synthetics v. Stressed Asset Stabilisation Fund [2022] 145 taxmann.com 594 = 175 SCL 422 (NCLAT) [Of course, amount should exceed minimum amount prescribed].
Minimum default for pre-packaged IRP (PPIRP) can be set upto Rupees one crore (presently minimum Rs. 10 lakhs) - The Central Government may, by notification, specify such minimum amount of default of higher value, which shall not be more than one crore rupees, for matters relating to the pre-packaged insolvency resolution process of corporate debtors (PPIRP) under Chapter III-A (Pre-packaged insolvency resolution process) - second proviso to section 4 of Insolvency Code inserted vide IBC (Amendment) Act, 2021 w.r.e.f. 4-4-2021.
Minimum default should be Rupees ten lakhs in case of PPIRP - Minimum default should be Rs. ten lakhs for the matters relating to the pre-packaged insolvency resolution process of corporate debtor under Chapter III-A of the Insolvency Code - Notification No. S.O. 1543(E) dated 9-4-2021. There is no upper limit for maximum default.
Corporate debtor - “Corporate debtor” means a corporate person who owes a debt to any person - section 3(8) of Insolvency Code, 2016 - section 3(8) of Insolvency Code, 2016. IBC Code applies to Government company also - IBC Code applies to Government company also - Hindustan Paper Corporation Limited Officers’ and Supervisors’ Association v. Union of India [2021] 130 taxmann.com 153 (Gauhati HC DB).
Proceedings for CIRP is not a ‘suit’, hence unregistered partnership firm can apply under Insolvency Code - Application for CIRP is not a ‘suit’. Provisions of section 69(2) of Indian Partnership Act, 1932, applies to ‘suits’ and therefore, same cannot apply to ‘proceedings’ under Code - NN Enterprises v. Relcon Infra Projects Ltd. [2020] 159 SCL 229 = 114 taxmann.com 673 (NCLT) * Shree Dev Chemicals v. Gammon India (2020) 161 SCL 59 = 118 taxmann.com 56 (NCLT) * Rourkela Steel Syndicate v. Metistech Fabricators (2023) 177 SCL 115 = 148 taxmann.com 376 (NCLAT).
Insolvency proceedings before NCLT is not a ‘suit’ - Bimalkumar Manubhai Savalia v. Bank of India [2020] 117 taxmann.com 227 (NCLAT).
Reasons for default are not relevant – If there was debt and there is default, application is required to be admitted. Reasons for default are not relevant – Dr. H N Nagaraj v. Edelweiss Asset Reconstruction Co Ltd. (2018) 148 SCL 447 = 84 taxmann.com 326 (NCLAT). [In this case, the applicant argued that the restructured loan instalments were to be paid by selling immovable properties. However, these could not be sold as financial creditor had obtained injunction from Court].
Application is for resolution of insolvency and not recovery proceeding - Application to initiate CIRP is for resolution of insolvency or liquidation and not (in effect) for recovery of debt. Such application cannot be admitted - C Shivakumar Reddy v. Dena Bank (2020) 158 SCL 375 = 114 taxmann.com 219 (NCLAT) - relying on Jignesh Shah v. UOI (2019) 109 taxmann.com 486 = 156 SCL 542 = 10 SCC 750 (SC 3 member bench).
NCLT cannot exercise inherent powers to decide any dispute under section 7, 9 or 10NCLT has to decide issue of ‘dispute’ as per the definition. NCLT cannot exercise inherent powers to decide any dispute under section 7, 9 or 10 (by considering some extraneous matters) – Neha Himatsinghka v. Himatsingka Resorts P Ltd. (2019) 151 SCL 359 = 100 taxmann.com 421 (NCLAT). 59
Joint application against two corporate debtors permissible - Joint application against two corporate debtors is permissible if developer and landowner has collaborated i.e. had Joint Development Agreement – Mrs Mamatha v. AMB Infrabuild P Ltd. (2019) 151 SCL 507 = 101 taxmann.com 309 (NCLAT).
In Edelweiss Asset Reconstruction Company Ltd. v. Sachet Infrastructure (P.) Ltd. [2019] 111 taxmann.com 115 (NCLAT), corporate debtors (landholders) in concert with principal borrower decided to develop an area by constructing infrastructure for allottees. Lands of all corporate debtors were consolidated for construction purpose. It was held that Resolution Process would not succeed if whole project was not taken over by Resolution Professional for consolidated ‘resolution plan’. Hence, group CIRP proceedings is required to be initiated against corporate debtors apart from CIRP already initiated against principal borrower.
However, in Dr. Vishnu Kumar Agarwal v. Piramal Enterprises Ltd. (2019) 151 SCL 555 = 101 taxmann.com 464 (NCLAT), it was held that financial creditor cannot file two CIRP against two corporate guarantors, for same set of debt.
Consolidated CIRP in case of group companies i.e. holding and subsidiary - In Axis Bank Ltd., In re (2020) 162 SCL 67 = 115 taxmann.com 133 (NCLT), CIRP was initiated against three group companies - one holding and two 100% subsidiaries. It was noted that each 100% subsidiary depended on outcome of holding company, and without consolidation of CIRP of the three companies, resolution was not possible. Hence, consolidation of CIRP was ordered.
Direct liquidation if no possibility of revival of corporate debtor - If there is no possibility of revival of corporate debtor, it would be just and proper to put the corporate debtor under liquidation process, rather than to put it in CIRP in first instance - GNB Technologies P Ltd., In re [2020] 115 taxmann.com 188 (NCLT) * Ultratreat Industrial Services v. Karan Processors (P.) Ltd. [2021] 124 taxmann.com 84 (NCLT).
Interim order before admission of CIRP to protect assets - Interim order can be passed by NCLT even before admission of CIRP to protect assets of corporate debtor Yes Bank v. Dewan Housing Finance (2022) 139 taxmann.com 222 (NCLAT).
Suspension of initiation of CIRP - No CIRP if default occurs on or after 25-3-2020 and upto 24-3-2021 - In view of lockdown due to Covid-19 (Corona virus), if any default occurs on or after 25-3-2020, application for CIRP cannot be filed for one year (initially it was for six months) in specified situations. This is not universal suspension of Insolvency Code but only suspension of CIRP if default occurs during Covid-19 period i.e. 25-3-2020 to 24-32021.
Section 10A of Insolvency Code, as introduced w.r.e.f. 5-6-2020, reads as follows -
Notwithstanding anything contained in sections 7, 9 and 10 of Insolvency Code, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25-3-2020 for a period of six months or such further period, not exceeding one year from such date, as may be notified in this behalf. No application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period - Explanation to section 10A of Insolvency Code.
It is clarified that the provisions of this section shall not apply to any default committed under the said sections before 25-3-2020.
Corporate person means company or LLP or other body corporate with limited liability. However, the Code does not cover Bank, Financial Institutions, Insurance Company, Asset Reconstruction Company, Mutual Funds, Collective Investment Schemes or Pension Funds.
“Corporate person” means a company as defined in section 2(20) of the Companies Act, 2013, a limited liability partnership (LLP) or any other person incorporated with limited liability under any law for the time being in force, but shall not include any financial service provider - section 3(7) of Insolvency Code, 2016.
However, section 227 of Insolvency Code empowers Central Government to notify financial services to whom provisions of Insolvency Code shall apply. Under these powers, Insolvency Code has been made applicable to NBFC with assets of Rs 500 crore or more.
Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019.
“Financial service provider” means a person engaged in the business of providing financial services in terms of authorisation issued or registration granted by a financial sector regulator - section 3(17) of Insolvency Code, 2016.
“Financial sector regulator” means an authority or body constituted under any law for the time being in force to regulate services or transactions of financial sector and includes the Reserve Bank of India, the Securities and Exchange Board of India, the Insurance Regulatory and Development Authority of India, the Pension Fund Regulatory Authority and such other regulatory authorities as may be notified by the Central Governmentsection 3(18) of Insolvency Code, 2016.
“Financial service” includes any of the following services - section 3(16) of Insolvency Code, 2016—
(a)accepting of deposits.
(b)safeguarding and administering assets consisting of financial products, belonging to another person, or agreeing to do so.
(c)effecting contracts of insurance.
(d)offering, managing or agreeing to manage assets consisting of financial products belonging to another person.
(e)rendering or agreeing, for consideration, to render advice on or soliciting for the purposes of— (i) buying, selling, or subscribing to, a financial product (ii) availing a financial service; or (iii) exercising any right associated with a financial product or financial service.
(f)establishing or operating an investment scheme.
(g)maintaining or transferring records of ownership of a financial product.
(h)underwriting the issuance or subscription of a financial product.
(i)selling, providing, or issuing stored value or payment instruments or providing payment services.
Financial Product - “Financial product” means securities, contracts of insurance, deposits, credit arrangements including loans and advances by banks and financial institutions, retirement benefit plans, small savings instruments, foreign currency contracts other
than contracts to exchange one currency (whether Indian or not) for another which are to be settled immediately, or any other instrument as may be prescribed - section 3(15) of Insolvency Code, 2016.
Definition of ‘corporate person’ completely excludes financial service providers, unless specifically notified under section 227 of Insolvency Code. The reason is that they are regulated by specialized agencies.
Thus, the Code does not cover Bank, Financial Institutions, NBFC, Insurance Company, Asset Reconstruction Company, Mutual Funds, Collective Investment Schemes or Pension Funds, unless specifically notified.
The provisions of Insolvency Code have been made applicable to NBFC (which include housing finance companies) with asset size of Rs 500 crore or more as per last audited balance sheet, vide Notification No. S.O. 4139(E) dated 18-11-2019. RBI will be the ‘Appropriate Financial Regulator’ for this purpose.
NBFC cannot be a ‘corporate debtor’ (unless notified under section 227 of Insolvency Code) - In Jindal Saxena Financial Services v. Mayfair Capital (2018) 146 SCL 76 = 90 taxmann.com 127 (NCLT), it was held that NBFC is engaged in various activities and hence NBFC is not ipso facto excluded from definition of ‘corporate person’ under section 3(7) of Insolvency Code. NBFC can be a ‘corporate debtor’. However, this decision has been reversed in Randhiraj Thakur v. Jindal Saxena Financial Services (2018) 150 SCL 154 = 98 taxmann.com 192 (NCLAT), where it was held that when RBI has granted certificate of registration as NBFC, it is financial service provider and hence NBFC cannot be a corporate debtor.
Application against NBFC under section 7 of Insolvency Code is not maintainable –Housing Development Finance Corporation Ltd. v. RHC Holding (P.) Ltd. [2019] 107 taxmann.com 200 (NCLAT) * Gyanchand Mutha v. Aditya Birla Money Ltd. [2021] 128 taxmann.com 422 (NCLAT).
NBFC cannot be a ‘corporate debtor as it is financial service provider. Application under section 7 is not maintainable against NBFC – Housing Development Finance Corporation Ltd. v. RHC Holding (2019) 155 SCL 4 = 107 taxmann.com 200 (NCLAT) * Saumil A Bhavnagri v. Nimit Builders (2020) 158 SCL 133 = 114 taxmann.com 55 (NCLAT).
Only RBI can initiate proceedings against NBFC - Proceedings under Insolvency Code against NBFC with assets exceeding Rs 500 crores can be initiated only by Regulator i.e. RBI Bank of India v. AKJ Fincap Ltd. (2022) 139 taxmann.com 34 (NCLT).
Provisions of Insolvency Code do not apply to financial service providers unless specific notification is issued under section 227 of Insolvency Code.
The insolvency and liquidation proceedings for financial service providers or categories of financial service providers may be conducted with such modifications and in such manner as may be prescribed – Explanation to section 227 of Insolvency Code inserted vide IBC (Amendment) Act, 2020, w.r.e.f. 28-12-2019.
Para 3.2
Presently provisions of Insolvency Code apply to NBFC (which include housing finance companies) with asset size of Rs 500 crore or more as per last audited balance sheet, vide Notification No. S.O. 4139(E) dated 18-11-2019. RBI will be the ‘Appropriate Financial Regulator’ for this purpose.
The Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019 have been notified on 1-12-2019.
The Rules shall apply to such FSPs or categories of FSPs, as will be notified by the Central Government under section 227 of Insolvency Code from time to time in consultation with appropriate regulators, for the purpose of their insolvency and liquidation proceedings.
The Rules provide that the provisions of the Code relating to the Corporate Insolvency Resolution Process (CIRP), Liquidation Process and Voluntary Liquidation Process for a corporate debtor shall, mutatis mutandis, apply to a process for an FSP, subject to modifications, as under –
(
a)The CIRP of an FSP shall be initiated only on an application by the appropriate regulator (and not by corporate debtor). [In case of NBFC, ‘appropriate regulator’ is RBI]. This will be treated as application by financial creditor under section 7 of Insolvency Code.
(b)On admission of the application, the Adjudicating Authority shall appoint the individual, who has been proposed by the appropriate regulator in the application for initiation of CIRP, as the Administrator (He will be termed as ‘administrator’ instead of ‘insolvency professional’, ‘insolvency resolution professional’, ‘resolution professional’, ‘liquidator’ etc.)
(c)While conducting a proceeding of an FSP, the Administrator shall have the same duties, functions, obligations, responsibilities, rights, and powers of an insolvency professional, interim resolution professional, resolution professional or liquidator, as the case may be. He shall be appointed or replaced by the Adjudicating Authority on an application made by the appropriate regulator in this behalf.
(d)The appropriate regulator may constitute an Advisory Committee of three or more experts to advise the Administrator in the operations of the FSP during the CIRP Rule 5(c). Thus, there will be no Committee of Creditors. An interim moratorium shall commence on and from the date of filing of the application for initiation of CIRP by the appropriate regulator till its admission or rejection by the Adjudicating Authority [Rule 5(b)(i)].
(e)The provisions of interim-moratorium under rule 5(b) or moratorium under section 14 of Insolvency Code shall not apply to any third-party assets or properties in custody or possession of the FSP, including any funds, securities and other assets required to be held in trust for the benefit of third parties [Rule 10(1)]
(f)The Administrator shall take control and custody of third-party assets or properties in custody or possession of the FSP and deal with them in the manner, to be notified by the Central Government under section 227 [rule 10(2)]
(g)The license or registration which authorises the FSP to engage in the business of providing financial services shall not be suspended or cancelled during the interimmoratorium and the CIRP [rule 5(b)(ii)]
(
h)Upon approval of the resolution plan by the Committee of Creditors under section 30(4) of Insolvency Code, the Administrator shall seek ‘no objection’ from the appropriate regulator to the effect that it has no objection to the persons, who would be in control or management of FSP after approval of the resolution plan under section 31 of Insolvency Code [rule 5(d)(ii)]. The appropriate regulator shall issue ‘no objection’ on the basis of the ‘fit and proper’ criteria applicable to the business of the FSP without prejudice to the provision of Section 29A of the Code [rule 5(d)(iii)].
(i)Provisions of voluntary liquidation apply to notified FSP. The FSP shall obtain prior permission of the appropriate regulator for initiating voluntary liquidation proceedings [rule 8]. The Adjudicating Authority shall provide the appropriate regulator an opportunity of being heard before passing an order for dissolution of financial service provider under section 59 of Insolvency Code [rule 8(c)]
(j)The Adjudicating Authority shall provide the appropriate regulator an opportunity of being heard before passing an order for liquidation under section 33 or dissolution of the FSP under section 54 of Insolvency Code [rule 7(b)].
Manner of dealing with third party assets in custody or possession of financial service providers by administrator - Manner of dealing with third party assets in custody or possession of financial service providers by administrator has been specified in Notification No. SO 464(E) dated 30-1-2020.
Third party receivables which are administered by financial service provider as servicing or collection agent on behalf of third parties should continue. Statements and records should be maintained.
In case of third party assets in custody or possession of financial service provider, records should be maintained, assets should be properly maintained and returned/transferred to person entitled for the same.
The definitions of debt, claim, financial debt, operational debt are highly relevant under Insolvency Code.
Debt - “Debt” means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt – section 3(11) of Insolvency Code, 2016.
Debt due means debt due and payable. If the debt is barred by law under Limitation Act, it is not ‘debt due’ - B K Educational Services v. Parag Gupta and Associates (2018) 150 SCL 293 = 98 taxmann.com 213 (SC) = (2019) 11 SCC 633 - followed in SK Systems v. Hamtek Infra Projects India (2020) 157 SCL 678 = 113 taxmann.com 201 (NCLT).
If recovery certificate was issued on 24-12-2001, petition for CIRP on 21-7-2017 is barred. Section 23 of Limitation Act applies to continuous wrong and not to continuous right –Vashdeo R Bhojwani v. Abhyudaya Cooperative Bank (2019) 9 SCC 158.
Compulsorily Convertible Debenture (CCD) is equity. It is not debenture simpliciter. It is not a debt under section 3(11) of Insolvency Code - IFCI Ltd. v. Sutanu Sinha [2023] 156 taxmann.com 681 (SC 3 member bench).
Claim - “Claim” means— (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured (b) right to remedy for breach of contract under any law for the time being in force, if such
Para
breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, un-matured, disputed, undisputed, secured or unsecured – section 3(6) of Insolvency Code, 2016.
Financial Debt - “Financial debt” means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes—
(a)money borrowed against the payment of interest.
(b)any amount raised by acceptance under any acceptance credit facility or its dematerialised equivalent.
(c)any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument.
(d)the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed.
(e)receivables sold or discounted other than any receivables sold on non-recourse basis.
(f)any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing.
Explanation.— For the purposes of this sub-clause - (i ) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and ( ii) the expressions, “allottee” and “real estate project” shall have the meanings respectively assigned to them in section 2(d) and 2(zn) of the Real Estate (Regulation and Development) Act, 2016 [Explanation inserted w.e.f. 6-6-2018].
(
g)any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account.
(h)any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution.
(i)the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause - Section 5(8) of Insolvency Code, 2016.
Broad definition of ‘financial debt’ - In Pioneer Urban Land & Infrastructure Ltd. v. UOI (2019) 8 SCC 416 = 108 taxmann.com 147 = 155 SCL 622 (SC 3 member bench), it was held that wider words have been deliberately used in a residuary provision [section 5(8)(f) of Insolvency Code, to make the scope of the definition of “financial debt” subsume matters which are not found in the other sub-clauses of section 5(8) of Insolvency Code - quoted and followed in Dr. S.K. Srihari Raju v. Leesa Lifesciences (P.) Ltd. [2021] 123 taxmann.com 367 (NCLT), where it was held that if petitioner paid certain amount to lender of corporate debtor on behalf of corporate debtor as part of sale consideration for purchase of land, petitioner would fall within definition of ‘financial creditor’.
‘Financial debt’ includes interest free loan also and hence CIRP can be initiated – Orator Marketing v. Samtex Desinx [2021] 167 SCL 610 = 128 taxmann.com 424 (SC).
Para 3.2
Home Buyers can initiate Corporate Insolvency Process - The home buyers can initiate Corporate Insolvency Process against builder or developer as they have been included in definition of ‘financial debt’ as per explanation to section 5(8)(c) of Insolvency Code, inserted w.e.f. 6-6-2018. – confirmed in Shinoj Koshy v. Granite Gate Properties (2019)
152 SCL 125 = 102 taxmann.com 165 (NCLT) * Mohan Agarwal v Crown Realtech (2020) 158 SCL 74 = 113 taxmann.com 546 (NCLT).
“Allottee” in relation to a real estate project, means the person to whom a plot, apartment or building as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent –section 2(d) of RERA i.e. Real Estate (Regulation and Development) Act, 2016.
“Real estate project” means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartments, as the case may be, for the purpose of selling all or some of the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto - – section 2(zn) of RERA i.e. Real Estate (Regulation and Development) Act, 2016.
In Chitra Sharma v. UOI (2018) 148 SCL 833 = 96 taxmann.com 216 (SC), SC directed initiation of CIRP to protect interests of home buyers. It was also held that promoters will not be eligible to participate in CIRP due to section 29A of Insolvency Code.
In Jaypee Greens Krescent Home Buyers Welfare Association v. Jaypee Infratech Ltd. (2019) 151 SCL 402 = 101 taxmann.com 220 (NCLT), it was found that due to scattered nature of home buyers, it is difficult to get required 66% voting. However, there was difference of opinion on how to determine voting shares in such cases. Hence, the matter was referred to President.
Insolvency Code overrides RERA and hence all home buyers can get relief under Insolvency Code even if some approach RERA - Even if some home buyers had approached RERA and obtained relief/decree, they are on same footing as other home buyers under Insolvency Code. Both are treated as equal under Insolvency Code - Vishal Chelani v. Debasis Nanda (2024) 181 SCL 51 = 155 taxmann.com 273 (SC).
CIRP should be limited to particular real estate project and not to entire company?CIRP should be limited to particular real estate project and not to entire company. CIRP should not affect other projects where no default has occurred. Debt of corporate debtor are specific to a project and creditors are also different for different projects - Flat Buyers Association of Winter Hills-77 v. Umang Realtech [2020] 115 taxmann.com 249 (NCLAT) [No doubt a practical view but its legality has to be tested in law, as it is doubtful if resolution plan can be project wise].
In Indiabulls Asset Reconstruction Co. Ltd. v. Ram Kishore Arora [2023] 150 taxmann.com 244 = 178 SCL 454 (SC), NCLAT had ordered formation of CoC for only one project and all other projects were allowed to continue as ongoing projects. Supreme Court has admitted appeal against this decision issuing order that any process beyond voting on the resolution plan should not be undertaken without specific orders of Supreme Court. Money disbursed by land owner to developer for construction is financial debt – Money disbursed by land owner to developer for construction of residential building is financial debt - G Sreevidhya v. Karishnaa Foundations P Ltd. (2019) 153 SCL 30 = 104 taxmann.com 202 (NCLAT).
